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Leave granted to amend claims in snakebite case

Where plaintiff alleged a poisonous snake bit her as she entered defendant’s restaurant, demurrers to her negligence and negligence per se claims are sustained with leave to amend.

A negligence count against the owner of a retention pond near the restaurant is dismissed with prejudice.

The complaint

Plaintiff Myrick sued Rare Hospitality International (RHI), the owner and operator of a Longhorn Steakhouse, and Linton, who is identified as an employee or manager. Plaintiff alleged that a copperhead snake bit her while she was in the restaurant’s “foyer area.” Plaintiff also sued Southpoint, which owns nearby property. Plaintiff seeks $25 million in damages.

Plaintiff alleges in Count I that RHI and Linton ‘knew or reasonably should have known that there were snakes either in or near the restaurant that posed an unreasonable danger to invitees such as the plaintiff.’”

Plaintiff claims RHI and Linton were negligent because they did not inspect for snakes, failed to warn about snakes and did not erect barriers to prevent snakes from migrating to the property.

“Count II of the complaint alleges that snakes are ‘pests’ as defined in 12 VAC 5-421-3270; plaintiff alleges that the presence of the snake that bit her within the restaurant establishes negligence per se because the snake’s presence violates an administrative code governing food safety.

“Count III of the Complaint alleges negligence against Southpoint upon the theory that the design of the retention pond constitutes an unreasonable danger to patrons at the adjacent restaurant because snakes are ‘likely to migrate to the Restaurant[.]’”

Discussion

“The Complaint does not allege that RHI or Linton were aware in real time of the presence of the snake that bit the plaintiff. The Complaint does not specifically allege that the snake that bit the plaintiff  came from Southpoint’s pond. Rather, the Complaint makes repeated and diffuse allegations that RHI and Linton had seen snakes on their premises before, and that Southpoint knew or should have known that snakes would go from its property into the Restaurant.

“RHI argues that without an allegation that the defendants were aware of the presence of the offending snake, the Complaint ‘fails to state a claim on a traditional premises liability theory of duty to an invitee.’ RHI argues that the Virginia Supreme Court requires notice of the specific hazard causing the harm. 

“As counsel argues, adopting Plaintiff’s theory would mean that if RHI had seen one snake in its premises it would thereafter have a duty to prevent snakes in the future from entering the building. Failure to do so, in the plaintiffs view, is negligence. This imposes a near-strict liability upon the defendant. To the extent that this is plaintiff’s theory of its cause of action in Counts I and III of the Complaint, the Complaint is not supported by applicable law.

“Having pled the relative ubiquity of Copperheads in its Complaint, and having graphically identified habitat for Copperheads in areas virtually surrounding the defendant’s business, Plaintiff’s argument that the presence of snakes in the property was a foreseeable hazard falls short. If the same snake, or indistinguishable snakes, repeatedly entered the Restaurant perhaps the plaintiff could successfully claim that the Defendant was on notice of the risk presented to their patrons, with a concomitant duty to protect or warn. 

“But the allegations are for less specific than this and suggest only that copperheads could be encountered anywhere in the development, whether in a parking lot, on a sidewalk or in any of the businesses adjoining the woods, streams and ravines around the shopping center. …

“Snakes, including Copperheads, are indisputably wild animals. Despite the inferences attempted in the Complaint, neither RHI nor Linton ‘kept’ or ‘possessed’ the snake, or any snakes. Unlike tarantulas found in bananas, or bears eating garbage, there is no allegation that defendants did anything to bring any snake into the restaurant. 

“As a result, the entry of the snake that bit the plaintiff was as unpredictable as if she had encountered it in the parking lot, or on the sidewalk, or at another neighboring business. While it is possible that the snake was an offspring of a snake that migrated from the retention pond to the stone landscaping to give birth, it is pure speculation that the events unfolded in that fashion[.] …

“For these reasons, the demurrer to Count I of the Complaint is sustained with leave to amend.

“Plaintiff, in Count II, argues that snakes, including the one that bit her, are pests and subject to regulation in the Virginia Administrative Code, 12 VAC 5-421- 3270. …

“There is no specific allegation in the Complaint regarding RHI or Linton’s knowledge of snakes inside the restaurant; the Complaint speculates that the snake may have been hatched in the rocky border outside the building, but cannot specifically allege that the building or its perimeter was infested with snakes and that the defendants knew of the infestation and the danger it posed to the Plaintiff and other patrons. 

“RHI and Linton cannot be held negligent under a per se standard in the absence of the allegation of the specific facts necessary to impose upon them a duty based on knowledge of the threat posed to the Plaintiff.

“For these reasons, the demurrer to Count II of the complaint is sustained with leave to amend.”

As to Count III, plaintiff argues that her complaint that her injuries “were a foreseeable risk created by and known by Southpoint. In fact, that paragraph, like many others in the Complaint merely poses the possibility that the offending snake came from the Southpoint property.

“Plaintiff has not alleged, and likely could not allege,  that the snake that bit her came from the Southpoint property. The only possible basis for such an allegation would require an observation of that snake moving across the property to the entrance to the restaurant at a time proximate to the plaintiff’s injury.

“This reality supports the common law rule declining to impose liability upon a landowner for injury caused by wild animals leaving his property, Southpoint did not import the snakes, and did not take possession of them. Foreseeability is not the standard in this circumstance.

“The demurrer to Count III is sustained and Count III is dismissed. Leave to amend is not granted.”

Myrick v. Rare Hospitality Int’l, et al., Case No. CL20-696, Jan. 20, 2021, 15th Cir. Ct. (Glover). Christopher J. Toepp, Brian A. Cafritz, Mark C. Nanavati for the parties. VLW 021-8-015, 8 pp.

VLW 021-8-015